266

which his wife was then enceinte, and, in case such child died under twenty-one, then over, the devise over took effect immediately, the wife, as a matter of fact, not being enceinte.2 And the limitation over will take effect immediately if the prior limitation is void.267 But the fact that the prior limitation fails will not make the limitation over effective if the result would be to give the property to the second devisee or grantee under circumstances which would have excluded the limitation over if the prior limitation had taken effect.268

148. Failure of executory limitation.

If an executory limitation fail to take effect for any cause, as where the objects thereof never come into existence, or where the contingency on which it is limited becomes impossible, the preceding estate will, according to the decisions in this country, continue in the first taker, according to its original limitation, unless a contrary intention on the part of the testator appear.

269

lyn v. Ward, 1 Ves. Sr. 420, 5 Gray's Cas. 202; Mathis v. Hammond, & Rich, Eq. (S. C.) 121; In re Miller's Will, 161 N. Y. 71; Robison v. Female Orphan Asylum of Portland, 123 U. S. 702; Perkins v. Fisher, 59 Fed. 801, 8 C. C. A. 270.

268 Jones v. Westcomb, 1 Eq. Cas. Abr. 245, pl. 10, 5 Gray's Cas. 199; Frogmorton v. Holyday, 3 Burrows, 1618.

267 Hall v. Warren, 9 H. L. Cas. 420; Burbank v. Whitney, 24 Pick. (Mass.) 146; Perkins v. Fisher, 59 Fed. 801, 8 C. C. A. 270.

268 Tarbuck v. Tarbuck, 4 Law J. Ch. 129, 5 Gray's Cas. 207; Doo v. Brabant, 4 Term R. 706, 5 Gray's Cas. 204; Mathis v. Hammond, 6 Rich. Eq. (S. C.) 127; Lomas v. Wright, 2 Mylne & K. 769, 5 Gray's Cas. 205;. McGreevy v. McGrath, 152 Mass. 24. Thus, where there is a devise to A. with a devise over to B. in case of A.'s death under twenty-one, B. does not take merely because A. dies before the testator, if such death does not occur till A. has reached twenty-one, since to hold otherwise would give B. the property, although A. reached twenty-one, in violation of the terms of the will. Doo v. Brabant, 4 Term R. 706, 5 Gray's Cas. 204; Williams v. Chitty, 3 Ves. 549.

269 Drummond's Ex'rs v. Drummond, 26 N. J. Eq. 234; Groves v. Cox, 40 N. J. Law, 40; Shadden v. Hembree, 17 Or. 14; Medley v. Medley, 81 Va. 265; Merriam v. Simonds, 121 Mass. 198; North Adams First Universalist Soc. v. Boland, 155 Mass. 171; Gray, Perpetuities, § 250.

In England, however, it has been decided that the happening of the contingency named will terminate the prior estate, though the limitation over cannot take effect, unless the objection thereto is on the ground of remoteness.270

An estate subject to an executory devise to arise on a future event is, it seems, on the happening of that event, defeated only to the extent of the executory interest. Thus, on a devise to A. in fee, with a limitation over to B. for life on a certain contingency, A. is entitled to the property, rather than the heirs of the testator, after the expiration of the life estate in B.271

§ 149. Transfer of executory interests.

By the common law, an executory interest created by deed or will is, like a contingent remainder, regarded merely as a possibility, and cannot be conveyed inter vivos,272 but it may

That this is the rule in case the see post, § 157.

But see Leonard v. Burr, 18 N. Y. 96. limitation over is void for remoteness, 370 Doe d. Blomfield v. Eyre, 5 C. B. 713, 5 Gray's Cas. 188; Robinson v. Wood, 27 Law J. Ch. 726, 5 Gray's Cas. 192; Hurst v. Hurst, 21 Ch. Div. 278. This rule is questioned in the reporter's notes to Doe d. Blomfield v. Eyre, supra, and doubted on principle in the two cases last above cited, they being decided on the authority of Doe d. Blomfield v. Eyre. It is defended in Sugden, Powers (8th Ed.) 513. See the judicious discussion of these decisions in an article by Howard Wurts Page, Esq., in 20 Am. & Eng. Enc. Law (1st Ed.) 947, note.

The English doctrine seems to be opposed to the view, quite com. monly held in England, that a determinable fee cannot exist at the present day (see ante, § 81), since thereby the contingency is, if the limitation over is void, given the effect of a special limitation. See 1 Leake, 363, note (c); Gray, Perpetuities, § 250.

271 Gatenby v. Morgan, 1 Q. B. Div. 685, 5 Gray's Cas. 178; Jackson v. Noble, 2 Keen. 590; Thomae v. Thomae (N. J. Ch.) 18 Atl. 355. Contra, Doe d. Harrington v. Dill, 1 Houst. (Del.) 398. See 2 Wash burn, Real Prop. 346.

272 Smith, Executory Interests, § 754; Challis, Real Prop. 58, 142; Lampet's Case, 10 Coke, 46b; Hall v. Chaffee, 14 N. H. 215, Finch's Cas. 925; Jackson v. Waldron, 13 Wend. (N. Y.) 178. In Massachusetts, in view of the decisions as to contingent remainders (ante, § 129)

be released to the owner of the land,278 and may pass by estoppel.274 The transfer of such an interest inter vivos, if for a good or valuable consideration, will be recognized in equity.275 In England it is now provided that executory interests may be disposed of by deed,276 and in a number of states in this country there are substantially similar provisions.277

An executory interest in an estate of inheritance, or in a term of years, will pass to the heirs or executors of a person who is entitled thereto, on his decease,278 and it may be devised by him.279 If, however, the person entitled thereto is not ascertained, the interest can neither descend nor be devised, apart from statute.280

executory interests are no doubt freely alienable. See Wainwright ▼. Sawyer, 150 Mass. 168.

273 2 Preston, Abstracts, 283; Lampet's Case, 10 Coke, 46b; Miller v. Emans, 19 N. Y. 384; Jeffers v. Lampson, 10 Ohio St. 107.

274 Smith, Executory Interests, § 754.

275 Smith, Executory Interests, § 749; Fearne, Cont. Rem. 549; Wright v. Wright, 1 Ves. Sr. 409; Crofts v. Middleton, 8 De Gex, M. & G. 192; Higden v. Williamson, 3 P. Wms. 132; Bayler v. Com., 40 Pa. St. 37; Watson v. Smith, 110 N. C. 6; Wright v. Brown, 116 N. C. 26. 276 8 & 9 Vict. c. 106, § 6.

277 Chaplin, Suspens. Alien. § 10. See statutes cited 20 Am. & Eng Enc. Law (1st Ed.) 970. And see Nutter v. Russell, 3 Metc. (Ky.) 163; Griffin v. Shepard, 124 N. Y. 70.

278 Challis, Real Prop. 58; Goodright v. Searle, 2 Wils. 29; Chess' Appeal, 87 Pa. St. 362; Kenyon v. See, 94 N. Y. 563, Finch's Cas. 907; Barnitz's Lessee v. Casey, 7 Cranch (U. S.) 456; Hennessy v. Patter son, 85 N. Y. 91, Finch's Cas. 868; Collins v. Smith, 105 Ga. 525; Kean's Lessee v. Hoffecker, 2 Har. (Del.) 103; Clark v. Cox, 115 N. C. 93; Medley v. Medley, 81 Va. 265; Edwards v. Bibb, 43 Ala. 666; Brooks v. Kip, 54 N. J. Eq. 462.

279 Challis, Real Prop. 142; Roe d. Perry v. Jones, 1 H. Bl. 30; Jones v. Roe d. Perry's Lessee, 3 Term R. 88; Collins v. Smith, 105 Ga. 525; Winslow v. Goodwin, 7 Metc. (Mass.) 363.

280 Roe d. Noden v. Griffiths, 1 W. Bl. 605; Smith, Executory Inter ests, 744; 4 Kent, Comm. 261; Kean's Lessee v. Hoffecker, 2 Har (Del.) 103: Collins v. Smith, 105 Ga. 525.

VI. STATE STATUTORY ESTATES.

The law of future estates has been materially modified in many of the states by statutes tending to abolish the restrictions growing out of the doctrines of seisin and abeyance thereof.

$150. Statutes dispensing with a particular estate.

In many states it is provided that a freehold estate may be created to commence in futuro by deed or by will, with or without a precedent estate.281 Provisions of the above character not only dispense with the necessity of a particular estate to support an estate in its creation, but also, it would seem, prevent the possibility of the failure of a limitation under the rule that a contingent remainder must vest before the termination of the particular estate. But in some of these same states there are express statutory provisions, which have been previously referred to, against the failure of a remainder by the premature termination of the particular estate.282

§ 151. Statutes extending executory interests.

In a number of states there are statutes undertaking, in effect, to assimilate remainders to executory interests, it being sometimes provided that any contingent remainder will be valid if it would be valid as a conditional limitation;283 sometimes that any estate which would be good by way of executory devise is equally good if created by deed.284 In a few states it is pro

3811 Stimson's Am. St. Law, § 1421. These states are New York, Indiana, Michigan Wisconsin, Iowa, Minnesota, Nebraska, Virginia West Virginia, Kentucky, Missouri, Texas, California, North Dakota. South Dakota, Mississippi.

282 See ante, § 123.

2881 Stimson's Am. St. Law, § 1426. New York, Indiana, Michigan. Wisconsin, Minnesota, California, North Dakota, South Dakota. 284 1 Stimson's Am. St. Law, § 1421. Virginia, West Virginia, Kentucky, Alabama.

vided that a fee may be limited on a fee,285 and in several that a contingent remainder of freehold may be created to commence on the termination of a term of years, 286 this being in fact a corollary of the provisions in the same states allowing a future estate to be created without a freehold to support it.

As before stated, in a few states, though the Statute of Uses is not in force, and there is no statute expressly allowing the creation of future estates, it has been decided that future estates may be created without reference to the common-law rules on the subject.287

VII. THE RULE AGAINST PERPETUITIES.

The rule against perpetuities prohibits the creation of a future contingent interest unless, by the terms of its creation, the interest must vest within a life or lives in being, and twenty-one years thereafter. The rule applies to executory interests and powers, to contingent remainders, and, in some jurisdictions, to other contingent interests, and it is immaterial whether the interest be legal or equitable.

The rule does not apply if the interest must vest before or at the termination of an estate tail in another person in the same land.

152. The nature of the rule.

The rule against perpetuities, as developed by the English decisions, and recognized by the authoritative text writers, is concerned only with the time of vesting of an estate, and not with the duration of an estate already vested.288 Accordingly,

285 1 Stimson's Am. St. Law, § 1424. New York, California, North Dakota, South Dakota, Georgia.

286 1 Stimson's Am. St. Law, § 1424. New York, Indiana, Michigan, Wisconsin, Tennessee, California, North Dakota, South Dakota. 287 See ante, § 119 (c).

288 That this is the true scope of the

in Gray, Perpetuities, §§ 123-200, 232-246.

rule is conclusively shown So in Lewis, Perpetuity, p.

173, it is said: "The remoteness against which the rule is directed